Religious Exemptions and LGBTQ Child Welfare

In the wake of marriage equality, legal attention is increasingly shifting to resolving conflicts between religious liberty and LGBTQ equality. The current terms of the debate largely center on same-sex marriage, and much less attention is being paid to how religious exemptions affect LGBTQ people in situations that do not involve marriage. LGBTQ youth in the child welfare system are one example of a group that is overshadowed in this debate. Several states have recently enacted broad religious exemption laws that allow the religious or moral views of child welfare actors (for instance, child welfare agencies, caseworkers, or foster parents) to guide the nature of the services they provide, even if those views denounce LGBTQ people. The growing push for these broad religious exemptions has high stakes for LGBTQ youth, who are overrepresented, face pervasive inequality, and are more likely to experience negative outcomes, in the child welfare system.

This Article explains why we should view the experiences of LGBTQ youth in the child welfare system as an essential part of the debate over religious liberty and LGBTQ equality. It further describes why it is necessary to include eliminating LGBTQ-based child welfare inequality within a broader vision of a fully inclusive LGBTQ antidiscrimination regime. To accomplish these goals, this Article recasts religious exemptions involving LGBTQ child welfare through the lens of historical theories of sexual deviance in the fields of criminology, psychology, and sociology.

This new historical and theoretical framing reveals how the current push for religious exemptions involving LGBTQ child welfare is the latest point on a much longer historical trajectory of child welfare interventions that subordinate LGBTQ youth based on sexual deviance concepts. This recasting further illustrates how broad religious exemptions enable antiquated theories of sexual deviance to thrive in the child welfare system today, and protect instances of religiously motivated discrimination that undermine LGBTQ equality both inside and outside of the child welfare system. Accordingly, broad religious exemptions involving LGBTQ child welfare do much more than mediate conflicts between religious liberty and LGBTQ equality in the wake of marriage equality. Rather, these exemptions facilitate and recreate LGBTQ-based structural and cultural inequalities within the child welfare system and in society at large. Law and doctrine should recognize these points when determining whether and how to accommodate religion in LGBTQ child welfare contexts.